Court to hear key gas-drilling appeals case

CHARLESTON, W.Va. -- The state Supreme Court will hear arguments later this week in a significant case that could decide if surface landowners are able to appeal oil and gas drilling permits on their land.

Citizen groups, industry lobbyists and the state Department of Environmental Protection all seem to agree that West Virginia's oil and gas statute doesn't specifically allow such appeals.

But though justices appear to have incorrectly cited that statute in a ruling 10 years ago, citizen groups argue now that the court reached the correct result. They say surface landowners should have a due process right to have their challenges to drilling permits heard.

"We are asking the courts to recognize the surface owners' constitutional right to a hearing - a hearing after the driller files the permit application, and to appeal if the DEP errs in issuing the permit," said Julie Archer of the West Virginia Surface Owners' Rights Organization.

Archer's organization filed a "friend of the court" brief in support of Doddridge County resident Matthew Hamblet in his effort to challenge an EQT Production Co. gas well permit on his land.

Like many West Virginians, Hamblet owns the surface of a 443-acre parcel, but does not own the rights to the oil and gas underneath the land.

When EQT obtained a lease and applied for a permit to drill on the site, Hamblet objected to parts of the company's permit application, noting damage from previous drilling and urging DEP to require changes in the company's plans. DEP's Office of Oil and Gas approved EQT's plans anyway, and Hamblet filed a lawsuit in circuit court to challenge that approval.

In his case, lawyers Cynthia Loomis and Isak Howell cite a 2002 Supreme Court opinion that said surface landowners have the right to file court appeals of DEP permit actions on oil and gas wells. But the statute cited by the court in that case doesn't actually grant that right to landowners -- only to coal owners who are concerned about nearby gas drilling.

Lawyers for DEP and for EQT sought to have Hamblet's court case dismissed, arguing that the Supreme Court's 2002 ruling was wrong. Doddridge County Circuit Judge John L. Henning refused, but did agree to submit the matter to the Supreme Court for clarification.

DEP and EQT now argue that the case is clear.

"As a surface owner, [Hamblet] does not have a statutorily defined right to seek judicial review," wrote DEP lawyer Joseph J. Jenkins.

EQT lawyer Richard Gottlieb wrote in his brief, "This court should hold that surface owners are not entitled to an administrative appeal of the issuance of a well work permit, and specifically not the issuance of a horizontal shallow gas well work permit."

But the surface owners' group argues that a constitutional right to challenge permits exists, and is all the more important as drilling in the Marcellus Shale region booms, and West Virginia lawmakers refused to allow public hearings on permits when they passed a new regulatory scheme late last year.

"The simple fact is that surface owners need the right to a hearing now," wrote David McMahon, a lawyer for surface owners. "Every week of delay means more surface owners are being denied their constitutional due process and having bad decisions made for the construction of well sites and access roads on their land, and the drilling of oil and gas wells through the groundwater of their land."